The Labour Court heard this appeal from the Workplace Relations Commission where the employee had been awarded €2,000 for discrimination.
The burden of proof set out in the Employment Equality Act 1998 sets the standard of proof for an employee claiming they have been discriminated against. Section 85A is the relevant provision:
“85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
The good news is that once you establish facts from which it may be presumed that discrimination has occurred it is for the employer to prove otherwise as the employee will have shifted this burden of proof.
However, it is not enough for the employee to simply make assertions of discrimination. Or give an opinion that by reason of their being a member of one of the protected groups that it follows that discrimination must have occurred.
This reminder is worth considering in the light of a Labour Court decision recently in which the Labour Court overturned the award of €2,000 by the WRC to a young employee in a childcare facility (a creche).
The employee had been dismissed having failed to pass her probation and brought a claim for discrimination on the grounds of age to the WRC. She was awarded €2,000 but this was appealed to the Labour Court.
The Labour Court set aside the award as it held that the employee had failed to establish a prima facie case of discrimination-that is, had failed to satisfy the test set out in section 85A.
It referred to Valpeters v Melbury Developments (2010) 21 E.L.R. 64 which noted that “mere speculation or assertions cannot be elevated to the status of facts from which an inference of discrimination can be drawn”.
In the instant case the employee had failed to prove her treatment was different by reason of her age, notwithstanding the expression of this belief by the employee. The Labour Court noted that no mention of age was ever made in the interaction between her and her employer.
The Labour Court also referred to Mitchell v Southern Health Board (2001) 12. E.L.R. 201 which held that it is only if primary facts establish the presumption of discrimination that the burden shifts to the employer.
The Court pointed to Margetts v Graham Anthony Limited EDA038 which found ‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’
All that is required of the employee in the first instance is to establish a prima facie case of discrimination to shift the burden of proof to the employer. But this burden will not be shifted by mere opinion or assertions or the fact that the complainant falls within one of the discriminatory grounds.
Something more than that is required.
Read the full Labour Court decision in HYDE AND SEEK GLASNEVIN- AND -JADE BYRNE-HOEY.